Appeal No. 2006-2655
Application No. 10/750,810
“microbiological contamination and deterioration of products, materials, and
systems.” Col. 1, ll. 11-13. Based on these disclosures, we conclude there is
sufficient evidence that the choice of a particular fungicide to utilize in a
personal care or oral preparation is the type of selection a skilled worker
would have routinely made at the time the invention was made.
Accordingly, we find that the Examiner has established a prima facie case of
obviousness under 35 U.S.C. § 103 of the claimed composition comprising
an oxathiazole-2-one compound in combination with a cosmetically
tolerable (claim 18) or orally tolerable (claim 19) adjuvant.
We do not find it significant that at least some of Muhlbauer’s
compounds have agricultural applications as pointed out by Appellants.6
Br. 3, 5. Blank describes the “versatility” of a single class of antimicrobial
agents (quaternary ammonium compounds), describing them for a wide
range of applications, e.g., in treating aquarium filters, plants, and fabrics,
and in paper substrates, wet wipe towelettes, and surgical dressings and
bandages. Col. 1, l. 20 to col. 2, l. 4. Thus, antimicrobial agents of the same
compound class were known in the prior art to have both agricultural (e.g.,
plants) and personal care (e.g., wet wipe towelettes) applications.
Appellants also argue that the compounds described in Kaminski,
Blank, and Lang are “entirely different class[es] of chemicals” and therefore
6 Appellants state that Muhlbauer discloses that its compounds “can be used
directly as agricultural fungicides.” Br. 5. We do not agree. Muhlbauer
states that its compounds “can be used directly as fungicides.” Muhlbauer at
3, l. 11. They describe the activity of certain of its compounds against
Corticium rolfsii (id. at 3, ll. 14-25), which apparently is a soil fungus. See
“Dissertation abstract” cited at Br. 5.
6
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